Friday, February 13, 2009

No school in church

The usual suspects are upset because some school districts hold their graduation ceremonies at Elmbrook Church. Rick Esenberg at Shark and Shepherd has a great blog post explaining the legal issues involved.

The first is that the fact that AU expends resources on an issue like this should reassure us that theocracy is a long way off.

Second, under existing law, AU may well be right. The Supreme Court has held that a bland nondenominational prayer at graduation violates the rights of those who do not wish to hear it. To listen to a state sponsored prayer as a condition of attending graduation constitutes, at least in the view of Justice Kennedy and four other justices in Lee v. Weisman , may be seen by a reasonable dissenter as participation in a religious exercise. It is certainly not inconceivable that entering a church could be seen as some sort of affirmation of its beliefs or, as Justice O'Connor would have put it, a dissenter might see the choice of Elmbrook Church as an endorsement of religion that makes here feel like a disfavored member of the political community. While I believe that Lee was wrongly decided, I think that there are still five votes for it on the Court and, of course, even justices who would not have joined Lee might be reluctant to overturn it.

On the other hand, perhaps Justice Kennedy would see this case differently. Perhaps entry into a church with religious symbols on display is not the same as standing or remaining silent during a prayer that is part of the graduation ceremony itself.

I'm clearly not a big fan of these kinds of lawsuits and I hardly think the presence of someone's religious symbol at a civic event constitutes the establishment of religion.

On the flip side, I'm surprised some parents from within the school district haven't objected until now in having the graduation ceremony at Elmbrook. Rick told the story of the nun at the Catholic school he intended referring to the Lutheran church next door as the place where Satan does his work. If I attended a graduation ceremony at Elmbrook, I'd probably wonder how many of the church members believe the devil is at work at my son's Catholic school.

As a practical matter I think the school districts should find an alternate location for their graduation ceremonies. I just wish that the decision had been left to the school districts and the parents.